Drone Law Blog


Complete Guide to Taylor v. FAA (Drone Registration Lawsuit)

Summary of the Drone Registration Lawsuit

drone-registration-lawsuitJohn Taylor and some other attorneys (myself being one of them) challenged the FAA. There were three cases initially filed and consolidated. The basic way to understand the issues in all three cases is Section 336 of the FAA Modernization and Reform Act of  2012 which says the “Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft.”

  • The FAA switching interpretations from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule. (No rule or regulation).
  • The creation of Part 48 was a regulation “regarding model aircraft[;]” thus, it is illegal.
  • The switching interpretations to apply the Special Flight Rules Area around D.C. to model aircraft is an interpretive rule in violation of 336.

 

Table of Contents

 

Why This Drone Registration Lawsuit Was Important

The reason why this case is important is that this is the first real high-level court with a substantive ruling.

This is a federal circuit court – right below the United States Supreme Court.

This was a short unanimous decision with no concurring or dissenting opinions. That is sending a big message to the FAA that this is settled law.

 

 

Who Is Affected By This Ruling?

This ruling is only for those flying their aircraft in accord with Section 336. This ruling does NOT apply to commercial or public aircraft.  This means the model aircraft being flown must be:

(1) capable of sustained flight in the atmosphere;

(2) flown within visual line of sight of the person operating the aircraft; and

(3) flown for hobby or recreational purposes.

AND

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

 

Keep in mind that just because you are flying recreationally does NOT mean you are in this protected category. A great example is people flying recreationally but not in accord with a community-based organization’s safety guidelines. These people are really recreational flyers who are operating under Part 107.  See below in the myths and misconceptions area for more info.

Also, the ruling was regarding the application of a NEW regulation towards model aircraft, but the court never ruled on whether the FAA could apply Part 47 (the already created paper based form of registration) to Section 336 model aircraft.

Where Are We Going from Here?

The FAA can choose to ask for a rehearing, but the D.C. Circuit Handbook of Practice says, “[v]ery few petitions for rehearing are granted. Sanctions may be imposed as a penalty for filing a petition for rehearing found to be wholly without merit.”

Another option is to file a petition to the United States Supreme Court. Something like 1-2% of the cases appealed to the Supreme Court are granted certiorari to be argued at the U.S. Supreme Court. This means that there is a high chance this is the final stop for this case.

Additionally, this is NOT the only case. There are two other cases out there!

Taylor v. FAA – Part 2

There is a fourth case Taylor filed that was consolidated with Electronic Privacy Information Center‘s challenge. The fourth case can be summed up as Part 101 is a regulation created “regarding model aircraft.” Part 101 was literally a copy-paste of Part 336 which makes it a per se violation.

 

Why was this 4th lawsuit filed?

 

The big reason why is the FAA can cause a lot of problems by creating interpretations of the different portions of Part 101 and if challenged in court, they would have a high chance of winning under Chevron deference. 

 

The FAA could create some interpretation saying a community-based organization must meet such-n-such standards for it to be recognized or they could say within line of sight means no first person view flying but only using your eyeballs.

 

Based upon the court’s ruling, there is a chance Part 101 will be struck down. The FAA will likely lose a second time.

The Academy of Model Aeronautics Lawsuit

The Academy of Model Aeronautics filed a lawsuit in August 2014 challenging the FAA’s model aircraft interpretation. The case has sat in abeyance but recently, the AMA has indicated they will move forward with the case. I’m not sure why it has just lingered in the D.C. Circuit for 16 months.

 

How the Court Ruled:

Taylor’s Arguments

Court’s Ruling

The creation of Part 48 was a regulation.“[T]he 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. …. In short, the Registration Rule is a rule regarding model aircraft.”
The FAA switching interpretation from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule.Footnote 1. “Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.”
The interpretation regarding the Special Flight Rules Area around D.C. is an interpretation in violation of 336.“We need not consider that question because Taylor’s challenge is untimely.”

Issues Raised in the Drone Registration Lawsuit the Court did NOT Rule On.

  • Whether the FAA has jurisdiction to regulate the lower portions of the sky?
  • Whether the interpretation now requiring registration under Part 47 is in violation of 336?
  • Whether the interpretation applying the special flight rules around D.C. apply to model aircraft in violation of 336?
  • Whether the FAA has jurisdiction to register people, not aircraft, under their enabling statutes in Title 49?
  • Whether Part 48, as applied to non-recreational operators, was created in violation of the Administrative Procedures Act?

To see very in-depth discussions on the issues NOT answered, see my articles:

 Here is the audio recording of the oral arguments before the judges.

 

Questions Left Unanswered

  • Does anyone get their $5 back?
  • What is the FAA going to do with the all the registration data?
  • Can the FAA still regulate model aircraft flyers under Part 47?

 

John Taylor and I talking about the Case on SUASNEWS:

Who Has Taken What Side In The Drone Registration Case Ruling

Favorable to Drone Registration:

  • AUVSI – “AUVSI is disappointed with the decision today by the U.S. Court of Appeals to reject the FAA’s rule for registering recreational unmanned aircraft systems (UAS). A UAS registration system is important to promote accountability and responsibility by users of the national airspace, and helps create a culture of safety that deters careless and reckless behavior. We plan to work with Congress on a legislative solution that will ensure continued accountability across the entire aviation community, both manned and unmanned.” from AUVSI STATEMENT ON U.S. COURT OF APPEALS DECISION ON UAS REGISTRATION
  • Small UAV Coalition – “The viability and growth of the UAS industry is contingent on the safe and responsible integration of UAS technology. This is only possible if all operators – commercial and recreational alike – understand their responsibilities and remain informed of the evolving standards around UAS technology. Today’s ruling generates uncertainty by eliminating a tool developed to maintain accountability and enable streamlined communication between the FAA and recreational UAS operators.The FAA must have appropriate authority to maintain reasonable oversight of UAS operations, including management of a national UAS registry, which is the first step to identifying UAS operating in the national airspace. A lack of reasonable authority will inhibit safe integration and ultimately obstruct commercial UAS operations, putting the United States at risk of falling behind global competitors who are increasingly embracing the benefits of UAS. The Small UAV Coalition looks forward to working with lawmakers and regulators to ensure that the FAA has the authority necessary to facilitate the safe, widespread, and expeditious integration of UAS into the national airspace (NAS).” – Press Release on Small UAV Coalition Website
  • Commercial UAV Alliance – The Commercial Drone Alliance is committed to promoting the safety and security of the National Airspace System (NAS). We believe registering drones and having reliable identification of all operators is critically important to holding operators accountable, and enhances the safety of the NAS. The registration requirement also provided much-needed education around the rules for safe hobbyist drone flight. As a policy matter, we believe the lack of a registration requirement could ultimately jeopardize the safety and security of the NAS. The Alliance looks forward to working with Congress to ensure that the FAA has clear authority to require registration of all drones, including hobbyist drones. –Press Release
  • Drone Manufacturer’s Alliance – “DMA is studying the implications of today’s registration-related court ruling, but believes the existing system has worked well to protect the interests of safe and responsible pilots as well as the interests of society at large. As we wait for word on whether the FAA will appeal this ruling, we hope all sides see the benefit of a reasonable and minimally restrictive form of basic regulation that has helped make drone operations in America overwhelmingly safe. We look forward to working with policymakers on a long-term legislative solution.” –Press Release
  • Helicopter Association International – “Helicopter Association International (HAI) strongly disagrees with the decision by the U.S. Court of Appeals to halt the registration of drones deemed to be “model aircraft.” Helicopters routinely operate at the same low altitudes as drones, and we in the helicopter industry are deeply concerned about our ability to fly safely in air space where pilots could encounter any unmanned aircraft, be it commercial or otherwise. One valuable component of the FAA’s drone registration program is the opportunity to educate the general population about the hazards of careless drone operation, and we believe that the FAA’s drone registration program serves to protect everyone in the air and on land. HAI strongly urges Congress to allow the FAA to do what the FAA does best; to provide safe and efficient use of our national airspace. We request that the FAA be given the governance and oversight over all forms of aircraft in order to ensure the safety of the National Airspace System.” – Press Release
  • (Ret.) Major General Poss who Founded ASSURE poss-tweet

In favor of the Court’s Ruling:

  • Academy of Model Aeronautics – “AMA is encouraged to see the Court affirm the strength of the Special Rule for Model Aircraft, otherwise known as Section 336, under which our members operate. For decades, AMA members have registered their aircraft with AMA and have followed our community-based safety programming. It is our belief that a community-based program works better than a federally mandated program to manage the recreational community.” – SUAS News

Other Interesting Quotes:

  • Federal Aviation Administration – “We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.” from Press Release – FAA Statement Regarding US Court of Appeals Decision
  • Brendan Schulman – ‘”The FAA’s innovative approach to drone registration was very reasonable, and registration provides for accountability and education to drone pilots,’ the company’s VP of Policy & Legal Affairs Brendan Schulman said in a statement offered to TechCrunch.’  ‘I expect the legal issue that impedes this program will be addressed by cooperative work between the industry and policymakers.'”  -Tech Crunch
  • Lisa Ellman – “‘The goal of the registration rule was to assist law enforcement and others to enforce the law against unauthorized drone flights, and to educate hobbyists that a drone is not just a toy and operators need to follow the rules,’ said Lisa Ellman, an attorney and specialist on the drone regulation with the law firm Hogan Lovells. ‘These are worthy goals, so if this ruling stands it wouldn’t surprise us to see a legislative response here.'” – Recode

 

Myths and Misconceptions Surround this Ruling

 

faa-drone-prosecution-336-model-aircraftMyth 1 – Recreational Drones Are Now Completely Unregulated. 

This is not true. The FAA already regulates recreational flying that does NOT fall into the Section 336 protected bubble -it’s called Part 107.

Section 336 says the FAA cannot create a rule or regulation regarding model aircraft if: …..

“(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization; …….

…….

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft[.]”

The bad actors we see on the news are not flying in accord with community-based organization SAFETY guidelines. (AMA safety code says,  model aircraft cannot be flown in a careless or reckless manner.) This means those recreational flyers do NOT even fall into the Section 336 protected category (big green circle to the left) and would be surprised to learn they fall into Part 107 which requires registration!

 

Myth 2 – The FAA CANNOT Do Anything to Model Aircraft Flyers

What might come as a shock to many, Congress gave the FAA the ability to prosecute Section 336 model aircraft flyers who “endanger the safety of the national airspace system.” (Small green circle inside the red circle to the left).  Section 336(b) says, “Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

The FAA can regulate and prosecute non-336 recreational flyers and only prosecute model aircraft endangering the safety of the national airspace. The FAA has tools in their toolbox for both scenarios!

 

Myth 3 – You Took Away a Good Tool for Finding the Bad Guys!

Was registration a tool that could be helpful? Yes. Was the way the FAA did it good? Definitely no.

1. History Repeating Itself. 

The next part sounds like history repeating itself. Let’s go back in time to 1988 where the U.S. Congress passed the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (‘‘DEA Act’’). Because the following text was so good, I just copied-pasted the following text from the FAA’s own Federal Register post from January 2007:

On March 12, 1990, the FAA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (55 FR 9270). The NPRM proposed changes to certain requirements concerning registration of aircraft, certification of pilots, and penalties for registration and certification violations. The NPRM also announced non-rulemaking procedural changes. We intended the changes to correct deficiencies in our systems and procedures identified in the FAA Drug Enforcement Assistance Act of 1988 (Pub. L. 100-690) (hereafter, “the Act”). The Act amended FAA’s authorizing legislation (49 U.S.C. 40101 et seq.) to-

……..

Modify the aircraft registration system to more  effectively serve the needs of buyers and sellers of aircraft, drug  enforcement officials, and other users of the system;

……..

The comment period closed on May 11, 1990. We received 373  comments, very few of which expressed support for the proposed changes. For the most part, commenters believed that the proposed changes would impose burdens only on law-abiding citizens, while criminals would simply circumvent them. As a result, FAA decided to delay the rulemaking process to assess whether specific technological improvements to the FAA Civil Aviation Registry (the Registry) could meet the intent of the Act. We believe we have now fulfilled most requirements of the Act through changes to systems and procedures used by the Registry. For this reason, we have withdrawn the 1990 NPRM in its entirety. Readers interested in the specific actions we have taken to fulfill the requirements of the Act should refer to the notice withdrawing the 1990 NPRM (70 FR 72403, Dec. 5, 2005).

To complete our obligations under the Act, we are proposing to address two deficiencies noted in the Act and not fully addressed through changes made to the Registry. The first issue concerns the proper identification of pilots. Law enforcement agencies must be able to establish the true identity of those who hold pilot certificates.  The second issue concerns the timely reporting of aircraft sales or other transfers of ownership. Law enforcement agencies must be able to determine who is the owner of an aircraft, particularly when ownership of the aircraft has recently been transferred.

Wow. The FAA admitted they had deficiencies. And what could those be?

2. Aircraft Registration Deficiencies Identified by Congress and the FAA

Congress told us what some of the deficiencies were in the DEA Act in Section 7205:

“[The FAA] shall assure positive and verifiable identification of each person applying for or holding such a certificate and shall address, at a minimum, each of the following deficiencies in and abuses of the existing system:

(1) The use of fictitious names and addresses by applicants for such certificates.

(2) The use of stolen or fraudulent identification in applying for such certificates.

(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.

(4) The use of counterfeit and stolen airman’s certificates by pilots.

(5) The absence of information concerning physical characteristics of holders of such certificates.”

 

3. Comparison of Registry Deficiencies from the DEA ACT to Part 48

Let’s now compare these 5 points from the DEA ACT to the Part 48 registry as applied to model aircraft.

DEA ACT

Part 48

(1) The use of fictitious names and addresses by applicants for such certificates.Section 48.100(b) asks for name, physical address (unless you can’t receive mail there, then a mailing address also), email address.   THE BIG PROBLEM IS NO ONE CHECKS HOW ACCURATE IT IS! THIS IS ON THE HONOR SYSTEM.
(2) The use of stolen or fraudulent identification in applying for such certificates.Once again, a person could just steal a person’s identity and register the drone. Furthermore, they don’t really need to even steal it. All you need to know is a person’s name, their address, and have a disposable email address.
(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.No one checks the address against a government issued ID when registering so how does anyone know where anyone lives?! Furthermore, you don’t have to have a government ID with you when you fly the drone for law enforcement to compare names and addresses.
(4) The use of counterfeit and stolen airman’s certificates by pilots.Part 48 was only registration and not an airmen certificate, but subsection 4 raises a good point about how does anyone know if the registration is stolen or if the registration (sharpied on or taped on) was counterfeit of a legitimate registration!
(5) The absence of information concerning physical characteristics of holders of such certificates.The model aircraft registration only asked for a name, an address that can receive mail, and an email address. Nothing about the person.

In short, Part 48 fails on the points Congress brought up which were designed to make things more secure with the Part 47 paper-based registry.

4. Not All Drones Are Registered

Below I graphed out actual registrations versus the FAA’s projection of hobby model aircraft using data from the FAA’s 2017 Aerospace Forecast and multiple speeches Administrator Huerta gave as archived on the FAA’s website.

part-48-registration-vs-projected-hobby-drones

You can see that there is a gap between what the FAA has estimated and what has actually been registered.

The only way registration makes sense is when it is done at the point of sale, with the seller responsible for reporting, as opposed to this “honor system” which the FAA has been operating under.

The graph above proves what everyone knew, that people would NOT register.

 

 

5. Many Reasons Why This Part 48 Registration Would Not Work.

I raised many issues when the registration ARC was first formed. I’m going to list below some of the big problems that I pointed out (all the way back in the fall of 2015) in my article 11 Big Problems with the FAA’s Mandatory Drone Registration.

What happens when the person does NOT want to fly anymore?

So the citizen has to register his drone. The drone registration last for 3 years under the current regulations. Are you going to force people to re-register their drones? Must they always have the drone registered? I can see a large group of people just letting the registration lapse and then selling their drones off on Amazon, Ebay, Craiglist, flea markets, and garage sales. Are the sellers required to keep paperwork of who they sold the drone to?

How are you going to identify the aircraft after the incident/crime/accident?

The pieces of a drone sucked into a jet engine are going to be all over the place. Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched-off serial number going to become illegal?

The two main groups that are causing problems are the (1) “how high can it fly” group and the (2) “I will fly wherever I want” group. Both of these groups can be countered with geo-fencing far better than registration. Registration points you to who might have caused the incident, geo-fencing can help prevent it.

Mandatory drone registration does not help identify drones being seen by pilots but only if they are captured.

Manned aircraft N-numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “Sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not?

Myth 4 –  This was necessary for security!

Do you know who owns the drones in the gapart-48-registration-vs-projected-hobby-dronesp between estimated and actually registered? I don’t – and neither does the FAA.

There was no point of sale requirement for registration.

Security has the word “secure” in it. How was this system secure?

Part 48 “Security” = A system where citizens voluntarily type in whatever information honestly, without 3rd party verification, and then tape on the registration to their drone.

The FAA should have looked to the DEA Act and Part 47 if they were really interested in security.

 

 

 

Myth 5 – This was necessary for safety!

HOW? A taped-on registration number brought about accountability? Tape can be easily removed, serial numbers scraped, or Sharpie-drawn marks marked over.

The follow-up response is that the registration checkout provided education which increased safety.

 

 

Myth 6 – Any substantial education that could have been received by those registering is now gone!

This is simply not true because (1) the FAA’s website with all its literature is still up and (2) the information provided in the checkout process was minuscule and legally wrong.

When you go through the registration process it takes you to one page where you have to acknowledge safety guidelines and under penalty of perjury, have to click a box that says, “I have read, understand and intend to follow the safety guidance.”

The Safety Guidance says:

Safety Guidance

My Commentary

I will fly below 400ft.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will fly within visual line of sight.Section 336 lists this.
I will be aware of FAA airspace requirements.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly directly over people.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly over stadiums and sports events.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near emergency response efforts such as  fires.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near aircraft, especially near airports.Just wrong.
I will not fly under the influence.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.

 

part 48 registration

The “safety guidelines” on the certificate of registration do not completely match the safety guidelines in the checkout process!  It was as easy as copy-paste, but the FAA failed to make them match or include all the safety points.

So I do admit that there was education that went on through the registration process but it was (1) minuscule, (2) legally inaccurate, (3) not complete, and (4) not the ONLY way the public could be educated.

Myth 7  – We needed registration to help prosecute the bad actors. 

A reporter I was working on a story with  kindly shared this information with me that he obtained from Les Dorr, the official FAA spokesperson.

Since 2014, the FAA has only prosecuted 48 drone operators. Let that sink in. Only 48.

The FAA does not need any more tools in their toolbox. The FAA has many regulations to nab the bad guys. The FAA’s enforcement philosophy is education rather than enforcement which results in many investigations and cases being dropped. The enforcement philosophy and understaffed legal department are the problems, not the lack of regulations.

If FAA really wanted to crack down on bad actors, they need to ask Congress for more money to beef up their legal department to focus on UAS prosecutions. They also need to change their enforcement philosophy.

This whole thing strikes me as crazy. Many are upset at this ruling but seem to be silent when it comes to commercial drone operators losing business to illegal operators.Law abiding people are losing work right now to illegal operators and the FAA has only 48 prosecutions to show for it? All across this country legal operators are losing work because the FAA fails to prosecute.

On top of this, John Taylor requested information under the Freedom of Information Act “seeking all records of requests by law enforcement authorities or others to identify registrants of specific small unmanned aircraft based on the registration number located on such aircraft.”  Here is the response.

taylor-foia-registation

 

How this Ruling is a Good Thing

This ruling is very important because it stands for the rule of law. The government we live under is a government of laws, not people.  We are not governed by arbitrary decisions of government officials but by the law. Everyone must follow the law – drone flyers as well as the FAA.

This case set the broken bone that was Part 48. The FAA has the opportunity to regulate lawfully and to now be an example to the unlawful. It is extremely damaging to safety to declare to the unsafe flyers that they must follow the laws created while the FAA is completely ignoring what Congress said in Section 336 and the Administrative Procedures Act. The unsafe flyer will say to himself, “The FAA isn’t following the law, why should I?”

 

Suggestions for the FAA:

My helping with the case was not to just troll the FAA but to uphold the rule of law. I’m very much for safety. I’m a FAA-certificated flight instructor who drilled into the heads of my students -safety -safety- safety. One of my flight instructors died in a plane wreck. I have a dead man’s signature in my logbook who left a wife and baby behind. I can appreciate the importance of safety.

In light of my love for safety and the rule of law, I provide these suggestions to the FAA to increase safety, lawfully:

  • Create regulations that are compliant with Section 336. If you don’t like Section 336, ask Congress to change, but don’t just ignore it. Everyone should follow the law, right?
    • This most likely means requiring remote ID-related regulations will need to be crafted as to not encompass 336 model aircraft, or you should get Congress to repeal or change 336.
  • There is a second Taylor v. FAA case coming down the pike shortly. I estimate it will be ruled upon in 3-4 months. Based upon my reading of the latest ruling the FAA stands to lose a second time. Additionally, with the Trump 2 for 1 deal that happened, the FAA needs sacrifical regulations to repeal to create pro business drone regulations. I suggest the FAA use Part 101 as a sacrificial regulation to get out the over people regulations. This upholds the rule of law and promotes business!
  • Change your enforcement philosophy against drone operators. The current system is so lenient that very few cases reach prosecution.
  • Leverage the commercial operators out there who would be more than willing to turn in all their illegal competitors. There is an army of people out there willing to give the FAA info, but many have stopped because the FAA does very little.
  • Hold accountable large companies who hire illegal operators. I think there is some possibility here, depending on the facts, to prosecute companies who choose the illegal operators rather than safe operators. Some companies hire illegals as sub-contractors.  If there are any objections, the safe operator loses the job and the company finds a person who is willing to do whatever the company wants. Speak to some of the attorneys in the general counsel’s office. I’m sure some of them will agree that the definition of “operator” and “person” in the regulations is sufficiently broad, under certain facts, to capture large companies.
  • Ask Congress for more funding for legal staff to prosecute drone operators.
  • Maybe create a donation process where people can opt-in easily to donate their $5 from the registration back to the FAA to hire attorneys to prosecute illegal and unsafe drone flyers.

Suggestions for Industry

  • Stop pitting commercial versus recreational. What it should be is safe vs unsafe. People who fall into the 336 category are going to have to be SAFE to be protected; otherwise, they are not in this category and can be required under Part 107 to be registered.
  • Actively working to undue 336 is a waste of political influence. 336 protected flyers are by definition having to fly according to CBO safety guidelines. Commercial industry should focus on getting the FAA to prosecute the illegal and unsafe operators. There are commercial operators right now losing thousands of jobs across the US because the FAA won’t crack down on the illegal operators. Only a total of 48 drone enforcement actions have happened since 2014. Stop focusing on undoing 336 and focus on stopping those that take food off the table of your constituents or buyers of your products!

Suggestions for Flyers:

  • Call your federal congressman and senator and tell them how you are following the law and are losing business to illegal operators. The FAA needs more money to increase their legal man power and they need to change their enforcement philosophy.
  • The organizations you are a member of, ask them what they are doing to help YOU.  Find out if they are actually doing something or cancel your membership and use those funds to help yourself.
  • Report illegal and unsafe flyers to your local FAA flight standards district office. You can find you local one here.

 

Helpful Graph for Understanding the Overall Situation

taylor-v-faa-drone-registration-lawsuit

 

Actual Text of the Court’s Opinion with my Emphasis

 

Below is the opinion of the court. I bolded text below which was interesting.

 

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2017 Decided May 19, 2017
No. 15-1495

JOHN A. TAYLOR,
PETITIONER
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
RESPONDENT

Consolidated with 16-1008, 16-1011
On Petitions for Review of Orders
of the Federal Aviation Administration
John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.
R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.
Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.

 

 

 

Before: KAVANAUGH and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.

 

 

 

KAVANAUGH, Circuit Judge: Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation’s air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as “model aircraft,” and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

 

 

 

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.

 

 

 

To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.

 

 
Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor’s petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order’s issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.

 

 

I

 

 

Congress has directed the FAA to “promote safe flight of civil aircraft” and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required “aircraft” to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

 

 
But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA’s Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, compliance with the Circular by operators of model aircraft was voluntary. See J.A. 1.

 

 
As unmanned aircraft technology has advanced, small unmanned aircraft have become increasingly popular. In response, the FAA has taken a more active regulatory role. In 2007, the FAA promulgated a notice announcing a new regulatory approach to unmanned aircraft. See Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). In the notice, the FAA distinguished between commercial and recreational unmanned aircraft. Under the new regulatory approach, commercial unmanned aircraft are subject to mandatory FAA regulations. Those regulations require operators to report the aircraft’s intended use, time or number of flights, and area of operation, among other things. Id. at 6690. By contrast, this notice did not alter the longstanding voluntary regulatory approach for model aircraft. Id.

 

 

 

In 2012, Congress weighed in on the debate over regulation of unmanned aircraft. Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note). The Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336 of the Act, called the “Special Rule for Model Aircraft,” provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defines “model aircraft” as “an unmanned aircraft that is — (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” Id. § 336(c).

 

 
Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The Registration Rule requires model aircraft owners to provide their names; physical, mailing, and email addresses; and any other information the FAA chooses to require. Id. at 78,595-96. The Registration Rule also creates an online platform for registration, establishes a $5 per-individual registration fee, sets compliance deadlines, and requires all small unmanned aircraft to display a unique identifier number issued by the FAA. Id. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,630.

 

 
Also in 2015, the FAA withdrew Advisory Circular 91-57 and replaced it with Advisory Circular 91-57A. See J.A. 3-5. Among other things, the revised Circular provided that model aircraft could not fly within the Flight Restricted Zone covering Washington, D.C., and the surrounding areas without specific authorization. See id. at 5.
Petitioner Taylor is a model aircraft hobbyist living in the Washington, D.C., area. Taylor argues that Section 336 of the FAA Modernization and Reform Act bars both the FAA’s Registration Rule and Advisory Circular 91-57A.1

 

 

II

 

 

We first consider Taylor’s challenge to the Registration Rule.  Section 336 of the FAA Modernization and Reform Act of 2012 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule is undoubtedly a rule. By requiring the prospective registration of all model aircraft, the Registration Rule announces an FAA “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4) (defining “rule” for purposes of the Administrative Procedure Act). In addition, the Registration Rule is a rule “regarding a model aircraft.” FAA Modernization and Reform Act § 336(a).

 

 

 

The Registration Rule sets forth requirements for “small unmanned aircraft, including small unmanned aircraft operated as model aircraft.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there be any doubt about whether the Registration Rule is a rule “regarding a model aircraft” for purposes of Section 336, the Registration Rule states that its “definition of ‘model aircraft’ is identical to the definition provided in section 336(c) of Public Law 112–95,” the FAA Modernization and Reform Act. Id. at 78,604.

 

 

 

 

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

 

 
The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.

 

 

 

We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification –on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. See id. at 78,630. In short, the Registration Rule is a rule regarding model aircraft.2

 

 

 

Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

 

 

 

In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.

 

 

III

 

 

We next consider Taylor’s challenge to FAA Advisory Circular 91-57A. The Circular prohibits the operation of model aircraft in certain areas, including in the Washington, D.C., Flight Restricted Zone. Taylor argues, among other things, that the Circular violates Section 336(a) of the FAA Modernization and Reform Act of 2012 because it too is a rule regarding model aircraft.

 
We need not consider that question because Taylor’s challenge is untimely. A person seeking to challenge an FAA order must file the challenge within 60 days of the order’s issuance. 49 U.S.C. § 46110(a). The FAA published notice of Advisory Circular 91-57A in the Federal Register on September 9, 2015. See Revision of Advisory Circular 91–57 Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 (Sept. 9, 2015). Taylor filed his petition for review on January 12, 2016 – more than two months after the 60-day deadline had passed.

 

 

 

A court may allow a late petition filed if the petitioner has “reasonable grounds” for missing the deadline. 49 U.S.C. § 46110(a). Taylor advances two grounds for his delay. But neither constitutes reasonable grounds under this statute.

 

 
First, Taylor argues that the FAA did not provide adequate notice that it had issued the new Circular. But on September 9, 2015, the FAA published its revisions in the Federal Register. See 80 Fed. Reg. 54,367. And Congress has determined that publication in the Federal Register “is sufficient to give notice of the contents of the document.” 44 U.S.C. § 1507. Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.

 

 

 

Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.
Ultimately, Taylor admits that he simply did not know about the revised Circular until the FAA launched a “media blitz” to publicize it. Taylor Br. 68. That may be understandable. But under our precedent, Taylor must point “to more than simply ignorance of the order” as reasonable grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition for review of Advisory Circular 91-57A is therefore untimely.
* * *
The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act. We grant Taylor’s petition for review of the Registration Rule, and we vacate the Registration Rule to the extent it applies to model aircraft. Because Taylor’s petition for review of Advisory Circular 91-57A is untimely, that petition is denied.

 

So ordered.

 

Footnotes:

1 Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.

2 We note that Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.

 

 


Ultimate Guide to Drone Laws (from a Lawyer & Pilot).

Interested in drone laws? It can be a pain to try and figure out what is applicable. That is why I created this page! 🙂

Where NOT to Look

Here is a tip, stay away from Facebook or anyone else who is a newbie to aviation. They tend to waste your time and provide bad guidance. Seriously, you should be very careful where you get information from – not everyone is qualified to give you information. You don’t install random pieces of software you find on the internet onto your computer, why would you do that for the laws and legal advice?

For example, I was reading a book by someone very popular on the internet which was just completely – flat out – totally- 100% wrong. I think this person just hired a copywriter to write the book which resulted in utter garbage. If you were to rely on that bad advice, you could get in trouble and be on the receiving end of a lawsuit or criminal prosecution.

You should vet everyone before you give them your time. Here, vet me by looking at my bio.

Where to look for info.

You should look at resources in this order:

  1. The actual law (Part 107, Part 101, Part 47, Part 48, etc.)
  2. The FAA’s website.
  3. My website! You can even use the search feature.
  4. Other competent drone lawyers or consultants (read the two articles below on how to find out as there are some really bad people out there).
  5. Your local Flight Standards District Office Aviation Safety Inspector, any FAA email on their website, etc.

 

I. United States Drone Laws

There are different levels of governmental authority in the U.S. We have a federated system where we are governed on certain things by the U.S. Federal Government and the state governments with those areas not enumerated to the U.S. government.

Additionally, the states have passed laws allowing counties, cities, and towns to regulate individuals.  At any given moment, a person can 3 or 4 levels of laws applying to them. For example, your drone operations could have the federal aviation laws, state drone laws, county drone laws, city or town laws, and maybe even HOA rules all applying to them.

Whether or not the states, counties, and cities can regulation drones is another big issue way outside of the scope of this article. As time goes on, things will shake out as to how much the states, counties, cities, and towns can regulate.

A. Federal Drone Laws

1. Federal Aviation Regulations (Enforced by the Federal Aviation Administration)

We immediately think of the Federal Aviation Administration (“FAA”) when it comes to drones. The FAA enforces the Federal Aviation Regulations (“FARs”) which apply to all sorts of things such as student training, airports, maintenance, flying, aircraft certification, rocket launches, etc.

The two parts of the FARs that apply to drone operators are Part 107 (for non-recreational operations) and Part 101 (for recreational operations). But that is NOT all!

All non-recreational drones are required to be registered under Part 47 or Part 48. All recreational drones weighing more than 250 grams are required to be registered also by either Part 47 or Part 48.

I have created many articles on the federal aviation regulations. I have listed below the most popular ones.

drone-laws-FAA-TSA-DOT-FCC-ITAR-EAR2. Other Federal Agencies

The FAA is not the only agency that regulates drones. There are also others!

If you crash your drone, you are required to report to the National Transportation Safety Board! Additionally, you might need to file an aviation safety reporting system form which is administered by NASA! See my article on What are you required to do after a drone crash?

The Transportation Safety Administration administers the alien flight student program (governed by the alien flight student regulations). All FAA certificated flight instructors know this and have to be careful regarding providing training as well as doing security awareness training. As I read it, I think the TSA could assert jurisdiction over flight instructors training alien flight students.

The Department of Transportation has regulations regarding the transportation of hazardous material (i.e. drone medical delivery).

The Federal Communications Commission regulations radio transmitters, the frequencies they transmit on, and the power of the transmitter. Many people don’t even pay attention to that sticker that is on the back of your controller. Take a chance to read it over some time.

The Department of Justice enforces the Federal Aviation Statutes in Title 49 of the United States Code.  The DOJ attorneys have been involved at least twice with drone operators: (1) the Skypan case which was originally started in the federal district court in Chicago and (2) in the federal district court in Connecticut with the Haughwout case (the kid who attached a gun and later a flamethrower to a drone).

You also have the Department of Commerce with the Export Administration Regulations (“EAR”) and the State Department with the International Trafficking in Arms Regulations (“ITAR”). Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.

B. State Drone Laws

All 50! I created a state drone law directory of all 50 states.  I also included some additional resources that would be helpful from the American Legislative Exchange Counsel (ALEC), National Conference of State Legislatures, and the National League of Cities. There is also a link to a model state drone legislation from ALEC.

US Drone Laws (2017) – Drone Laws by State

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II. International Drone Laws

There is no good reliable database of drone laws. I might create one as time goes on.

Below are the resources I have found on the internet that can assist you in finding the laws in a particular country.  I do not know how updated they are or accurate.  Use at your own risk.


South Dakota Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Fortunately, at the time of the writing of this article, there are no state level drone laws in South Dakota. Keep in mind there might be local laws that still apply. This article is only on drone specific state laws.

I had to search around to find any PROPOSED bills. I could only find SB 22  and SB 80 which were both proposed in 2017.

Proposed Senate Bill 22 says:

FOR AN ACT ENTITLED, An Act to exempt certain unmanned aircraft systems from the requirement to be registered as aircraft.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter 50-11 be amended by adding a NEW SECTION to read:

The provisions of §§ 50-11-8 and 50-11-9 do not apply to any unmanned aircraft system that weighs less than fifty-five pounds.

 

Proposed Senate Bill 80 says:

FOR AN ACT ENTITLED, An Act to regulate the use of drones under certain conditions and to provide a penalty therefor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That the code be amended by adding a NEW SECTION to read:

For purposes of this Act, the term, drone, means a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. The vehicle may be expendable or recoverable.
Section 2. That the code be amended by adding a NEW SECTION to read:

Any operation of a drone in the state shall comply with all applicable federal aviation administration requirements. Any drone operating under the authority of the Armed Forces of the United States, including the National Guard, is exempt from this Act.

The restrictions of sections 4 to 5, inclusive, do not apply to a drone operator operating a drone for commercial purposes pursuant to and in compliance with federal aviation administration regulations, authorizations, and exemptions.

Section 3. That the code be amended by adding a NEW SECTION to read:

No person may operate a drone over the grounds of a prison, correctional facility, jail, juvenile detention facility, airport, or any military facility unless expressly authorized by the administrator thereof. A violation of this section is a Class 1 misdemeanor.
Section 4. That the code be amended by adding a NEW SECTION to read:

The landing of a drone on the lands or waters of another, without the owner’s consent, is unlawful, except in the case of a forced landing. However, the owner or lessee of the drone is liable for any damages resulting from a forced landing.
Section 5. That § 22-21-1 be amended to read:
22-21-1. Any person who, except as authorized by law:

(1)    Trespasses on property with intent to subject anyone to eavesdropping or other surveillance in a private place; or

(2)    Installs in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in such place, or uses any such unauthorized installation; or
(3)    Uses a drone to photograph, record, or otherwise observe another person in a private         place where the person has a reasonable expectation of privacy;

is guilty of a Class 1 misdemeanor. Subdivision Subdivisions (2) and (3) shall not apply to law enforcement officers, or to those acting under their the direction of a law enforcement officer, while engaged in the performance of their lawful duties. 
Section 6. That the code be amended by adding a NEW SECTION to read:

Any person who uses a drone to deliver contraband or controlled substances to a state prison or other correctional facility is guilty of a Class 6 felony in addition to the penalty for the

principal offense.
Section 7. That the code be amended by adding a NEW SECTION to read:

Except for authorized law enforcement or any military purposes, including the lawful manufacture, repair, or refurbishment as of a legitimate contract with authorized law enforcement or military, any person who sells, transports, manufactures, possesses, or operates any drone capable of firing a bullet or projectile or otherwise be used as a weapon or avenue to inflict harm or damage to any person or property is guilty of a Class 5 felony.

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South Carolina Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Fortunately, at the time of the writing of this article, there are no state level drone laws in South Carolina. Keep in mind there might be local laws that still apply. This article is only on drone specific state laws.

There are three bills that have been proposed (SB 498, HB 4425, and HB 4421)  and 2 bills have failed (HB 3415 and HB 3514).

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Sign up for the drone newsletter and receive the PDF and great articles.

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Ohio Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Fortunately, at the time of writing this article, there are no state level drone laws. There have been four bills have have been proposed and two that have failed. There could be drone laws at the local level which are beyond the scope of this article which is focused ONLY on state law.

The Ohio Department of Transportation has a UAS division.

The Ohio Legislature has created a Ohio aerospace and aviation technology committee.

122.98 Ohio aerospace and aviation technology committee.

(A) There is hereby created the Ohio aerospace and aviation technology committee, consisting of the following members:

(1) Three members of the senate, appointed by the president of the senate, not more than two of whom may be members of the same political party;

(2) Three members of the house of representatives, appointed by the speaker of the house of representatives, not more than two of whom may be members of the same political party;

(3) Fifteen members representing the aviation, aerospace, or technology industry, the military, or academia. One such member shall be appointed by the governor, and fourteen such members shall be appointed by majority vote of the six members representing the senate and house of representatives.

The legislative members of the committee shall be appointed not later than September 1, 2014, and the remaining members shall be appointed within ten days thereafter. The initial term of all members shall end on December 31, 2016. Thereafter, the term of all members shall end on the thirty-first day of December of the year following the year of appointment. Vacancies shall be filled in the manner of the original appointment.

The first legislator appointed to the committee by the speaker of the house of representatives after the effective date of H.B. 292 of the 130th general assembly shall serve as the first chairperson of the committee and shall serve until December 31, 2016. Every general assembly thereafter, the chairperson shall alternate between the first legislator appointed by the president of the senate and the first legislator appointed by the speaker of the house of representatives.

(B) The duties of the committee shall include, but are not limited to, all of the following:

(1) Studying and developing comprehensive strategies to promote the aviation, aerospace, and technology industry throughout the state, including through the commercialization of aviation, aerospace, and technology products and ideas;

(2) Encouraging communication and resource-sharing among individuals and organizations involved in the aviation, aerospace, and technology industry, including business, the military, and academia;

(3) Promoting research and development in the aviation, aerospace, and technology industry, including research and development of unmanned aerial vehicles;

(4) Providing assistance related to military base realignment and closure.

(C) The Ohio aerospace and aviation council shall serve as an advisory council to the committee.

(D) The committee shall compile an annual report of its activities, findings, and recommendations and shall furnish a copy of the report to the governor, president of the senate, and speaker of the house of representatives not later than July 1, 2015, and the first day of July of each year thereafter.

Added by 130th General Assembly File No. TBD, HB 292, §1, eff. 9/17/2014.

Prior History: (Repealed by 129th General AssemblyFile No.39, SB 171, §2, eff. 6/30/2011.)

(Effective Date: 10-24-2001 .)

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Wisconsin Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Statute 29.083  Interference with hunting, fishing or trapping.

(1)  Definition. In this section, “activity associated with lawful hunting, fishing, or trapping” means travel, camping, scouting, target shooting, dog training, animal baiting or feeding, or other acts that are preparatory to lawful hunting, fishing, or trapping and that are done by a hunter, fisher, or trapper or by a member of a hunting, fishing, or trapping party.

(2) Prohibitions.

(a) No person may interfere or attempt to interfere with lawful hunting, fishing, or trapping with the intent to prevent the taking of a wild animal, or intentionally interfere with or intentionally attempt to interfere with an activity associated with lawful hunting, fishing, or trapping, by doing any of the following:

………..

8. Using a drone, as defined in s. 941.292 (1), to conduct any activity prohibited under subds. 1.to 7.

………

(4) Civil actions.

(a) A person who is adversely affected by, or who reasonably may be expected to be adversely affected by, conduct that is in violation of sub. (2) (a) may bring an action in circuit court for an injunction or damages or both.

(b) The circuit court may enter an injunction under ch. 813 against conduct in violation of sub. (2) (a) if the court determines any of the following:The defendant is threatening the conduct.

1. The defendant is threatening the conduct.

2. The defendant has engaged in the conduct in the past and that it is reasonable to expect that the defendant will engage in the conduct that will adversely affect the plaintiff in the future.

(c) The circuit court may award damages to the plaintiff if the defendant’s conduct in violation of sub. (2) (a) has adversely affected the plaintiff. The damages awarded may include punitive damages and any special damages. Special damages may include approval fees, travel costs, camping fees, costs for guides, and costs for equipment or supplies to the extent that the plaintiff did not receive the full value of any of these expenditures due to the unlawful conduct of the defendant.

History: 1989 a. 1901997 a. 248 s. 415; Stats. 1997 s. 29.083; 2015 a. 346.

The application of this section is limited to physical interference and does not violate the freedom of speech. State v. Bagley, 164 Wis. 2d 255474 N.W.2d 761 (Ct. App. 1991).

 

114.04 Flying and landing, limitations.

Subject to ss. 114.105 (3) and 175.55, and except as provided in ss. 114.045 and 942.10, flight of or in aircraft or spacecraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous or damaging to persons or property lawfully on the land or water beneath. The landing of an aircraft or spacecraft on the lands or waters of another, without the person’s consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or spacecraft or the aeronaut or astronaut shall be liable, as provided in s. 114.05.

 

114.045 Limitation on the operation of drones.

(1) No person may operate a drone, as defined in s. 114.105 (1) (a), over a state correctional institution, as defined in s. 301.01 (4), including any grounds of the institution.

(2) Any person who violates sub. (1) may be required to forfeit not more than $5,000.

(3) A law enforcement officer investigating an alleged violation of sub. (1) shall seize and transfer to the department of corrections any photograph, motion picture other visual representation, or data that represents a visual image that was created or recorded by a drone during an alleged violation of sub. (1).

114.105  Local regulation. 

(1) In this section:

(a) Drone” means a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.

(b)Political subdivision” means a city, village, town, or county.

(2) A political subdivision may adopt any ordinance in strict conformity with the provisions of this chapter and impose the same penalty for violation of any of its provisions except that an ordinance under this subsection may not provide for the suspension or revocation of pilot or aircraft licenses or certificates and may not provide for imprisonment except for failure to pay any fine which may be imposed.

(3)

(a) If a political subdivision determines that public safety requires that drone operation over an area under the jurisdiction of the political subdivision be limited, subject to par.

(b), the political subdivision may enact an ordinance designating the area as an area over which the operation of a drone is limited and imposing limitations on the operation of drones over the designated area. Subject to par. (b), an ordinance under this section may prohibit any operation of a drone over a designated area. (b) An ordinance under par. (a) may not apply to any of the following:

1. The operation of a drone by the state, an agency of the state, or a public safety agency, as defined in s. 256.35 (1) (g).

2. The operation of a drone with the permission of the owner of the property over which the drone is operated.

(c) If a political subdivision enacts an ordinance under par. (a), the political subdivision shall provide notice reasonably calculated to inform the public of the location of areas over which drone operation is limited. If the political subdivision produces a newsletter for its residents, the political subdivision shall provide notice of the areas affected by an ordinance under par. (a) in the newsletter. If the political subdivision maintains an Internet site, the political subdivision shall maintain a list of locations affected by an ordinance under par. (a) on the Internet site.

(d) A political subdivision may provide a forfeiture of not more than $2,500 for each violation of an ordinance under par. (a).

(4) No political subdivision may enact any ordinance governing aircraft or aeronautics or spacecraft or astronautics contrary to or inconsistent with the provisions of this chapter or federal law.

(5) Every court in which a violation of an ordinance under this section is prosecuted shall make a written report of any conviction, including bail or appearance money forfeiture, to the federal aviation administration.

175.55  Use of drones restricted.

(1) In this section:

(a) “Drone” means a powered, aerial vehicle that carries or is equipped with a device that, in analog, digital, or other form, gathers, records, or transmits a sound or image, that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.

(b) “Wisconsin law enforcement agency” has the meaning given in s. 165.77 (1) (c) and includes the department of justice and a tribal law enforcement agency.

(2) No Wisconsin law enforcement agency may use a drone to gather evidence or other information in a criminal investigation from or at a place or location where an individual has a reasonable expectation of privacy without first obtaining a search warrant under s. 968.12. This subsection does not apply to the use of a drone in a public place or to assist in an active search and rescue operation, to locate an escaped prisoner, to surveil a place or location for the purpose of executing an arrest warrant, or if a law enforcement officer has reasonable suspicion to believe that the use of a drone is necessary to prevent imminent danger to an individual or to prevent imminent destruction of evidence.

History: 2013 a. 213.

 

941.292  Possession of a weaponized drone.

(1) In this section, “drone” means a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.

(2) Whoever operates any weaponized drone is guilty of a Class H felony. This subsection does not apply to a member of the U.S. armed forces or national guard acting in his or her official capacity.

History: 2013 a. 213.

942.10  Use of a drone. 

Whoever uses a drone, as defined in s. 175.55 (1) (a), with the intent to photograph, record, or otherwise observe another individual in a place or location where the individual has a reasonable expectation of privacy is guilty of Class A misdemeanor. This section does not apply to a law enforcement officer authorized to use a drone pursuant to s. 175.55 (2).

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Wyoming Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Wyoming presently does not have any drone laws.

There have been at least 4 bills proposed, but they failed. I have placed those failed bills below for you to review.  Keep in mind that there might be local laws that apply but this article was only focusing on state level drone laws.

 

FAILED Bill HB0242 

FAILED Bill HB0030 

FAILED Bill HB0105

FAILED Bill HB0018

 

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West Virginia Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

West Virginia Code §20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.

Except as authorized by the director or by law, it is unlawful at any time for any person to:

……….

 

(4) Hunt, take, kill, wound or shoot at wild animals or wild birds from an airplane or other airborne conveyance, a drone or other unmanned aircraft, an automobile or other land conveyance, or from a motor-driven water conveyance;

(5) Use a drone or other unmanned aircraft to hunt, take or kill a wild bird or wild animal, or to use a drone or other unmanned aircraft to drive or herd any wild bird or wild animal for the purposes of hunting, trapping or killing;

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Washington Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

 

Fortunately, at the time of the writing of this article, there are no state level drone laws in the state of Washington. Keep in mind the focus of this article is only at the state lever. Local drone laws could be in effect.

This might change as Seattle has become tired of drones. Recently a man was sentenced to 30 days in jail by a judge for flying his drone in a careless and reckless manner which resulted in a woman being injured. Around the same time, a man crashed his drone into a Ferris wheel and another man crashed his drone into the Space Needle.

At least 7 bills have been proposed with two failing to gain traction.

Privacy Guidelines

The Chief Privacy Officer of the Washington Office of Privacy and Data Protection issued some guidelines for unmanned aircraft systems for policy makers and stakeholders as they develop policy proposals.

Here are the guidelines.

1. Definition of “Drones”—should apply to unmanned aerial vehicles controlled by a remote operator. Sample definition: “An unmanned aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.”
2. Law Enforcement and Respect for Civil Rights.

A. Fourth Amendment requirements must apply to the use of evidence derived from drone surveillance. This is grounded on probable cause and the need to obtain a warrant in advance of use for law enforcement purposes, if such evidence is to be introduced in a court of law.
B. Drones should not be used to monitor activities protected by the First Amendment or lawful exercise of other Constitutional rights.
C. Law enforcement personnel should balance use of drones against other means of gathering information in a particular investigative need, assessing whether such alternative means are less intrusive than the deployment of drones.

3. Purpose of Use—the purpose of use of a particular flight should be recorded and maintained by the applicable agency.

A. Drones should only be used in connection with properly authorized investigations and activities, unless they are authorized for on-going use by documented Agency policy.
B. Exceptions to stating a purpose of use in advance of actual use can be made for emergencies such as natural disasters, terrorism and “hot pursuit” of crimes.
C. Data collected by drones must be subject to existing state and federal laws and regulations regarding the privacy of personal information.

4. Data Minimization—the video images and other data derived from surveillance applications should be minimized in terms of review and retention, consistent with state records retention requirements. Only data pertaining to the original purpose of the drone flight should be retained. Agencies should set retention schedules consistent with the fulfillment of the original purpose of the drone flight.

5. Federal Law

A. FAA regulations regarding registration of drones, safety and no-drone zones must be followed.
B. The state acknowledges existing “open view” doctrines, as set forth by the Supreme Court and other legal authorities.

6. Policy Management

A. Drone guidelines and agency implementation should be reviewed annually to keep up with technology and respond to citizen concerns. Such review should take place within any agency that operates drones.
B. Drone guidelines should be published in print and online by each agency. OCIO will retain the guidelines in a central location.
C. The state should conduct public education and outreach regarding drone policies and operations by state agencies.
D. The state should not share drone data with the federal agencies without judicial authorization or review.
E. The state should not share drone data with local governments or between state agencies, unless such sharing is specified within the original purpose of the deployment

Washington Department of Transportation

Washington DOT uses unmanned aircraft they even published a large paper on their use.

Washington State Department of Commerce Office of Aerospace

The Office of Aerospace led the first ever Unmanned Systems Industry Council with multiple drone companies on it. AUVSI’s Cascade Chapter worked with the Office to advocate for the use of commercial drones.

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Virginia Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

§ 15.2-926.3. Local regulation of certain aircraft.

No locality may regulate the use of privately owned, unmanned aircraft system as defined in § 19.2-60.1 within its boundaries.

§ 19.2-60.1. Use of unmanned aircraft systems by public bodies; search warrant required.

A. As used in this section, unless the context requires a different meaning:

“Unmanned aircraft” means an aircraft that is operated without the possibility of human intervention from within or on the aircraft.
“Unmanned aircraft system” means an unmanned aircraft and associated elements, including communication links, sensing devices, and the components that control the unmanned aircraft.

B. No state or local government department, agency, or instrumentality having jurisdiction over criminal law enforcement or regulatory violations, including but not limited to the Department of State Police, and no department of law enforcement as defined in § 15.2-836 of any county, city, or town shall utilize an unmanned aircraft system except during the execution of a search warrant issued pursuant to this chapter or an administrative or inspection warrant issued pursuant to law.

C. Notwithstanding the prohibition in this section, an unmanned aircraft system may be deployed without a warrant (i) when an Amber Alert is activated pursuant to § 52-34.3, (ii) when a Senior Alert is activated pursuant to § 52-34.6, (iii) when a Blue Alert is activated pursuant to § 52-34.9, (iv) where use of an unmanned aircraft system is determined to be necessary to alleviate an immediate danger to any person, (v) for training exercises related to such uses, or (vi) if a person with legal authority consents to the warrantless search.

D. The warrant requirements of this section shall not apply when such systems are utilized to support the Commonwealth for purposes other than law enforcement, including damage assessment, traffic assessment, flood stage assessment, and wildfire assessment. Nothing herein shall prohibit use of unmanned aircraft systems for private, commercial, or recreational use or solely for research and development purposes by institutions of higher education and other research organizations or institutions.
E. Evidence obtained through the utilization of an unmanned aircraft system in violation of this section is not admissible in any criminal or civil proceeding.
F. In no case may a weaponized unmanned aircraft system be deployed in the Commonwealth or its use facilitated in the Commonwealth by a state or local government department, agency, or instrumentality or department of law enforcement in the Commonwealth except in operations at the Space Port and Naval/Aegis facilities at Wallops Island.
G. Nothing herein shall apply to the Armed Forces of the United States or the Virginia National Guard while utilizing unmanned aircraft systems during training required to maintain readiness for its federal mission or when facilitating training for other U.S. Department of Defense units.

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